Union Of India vs Dasang Bhutia
2022 Latest Caselaw 56 Sikkim

             THE HIGH COURT OF SIKKIM : GANGTOK
                              (Criminal Revisional Jurisdiction)
                                  DATED : 3rd August, 2022
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   SINGLE BENCH : THE HON‟BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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                               Crl.Rev.P. No.02 of 2020
                Petitioner               :                Union of India

                                                              versus

                Respondent               :                Dasang Bhutia



           Application under Sections 397 and 401 of the Code of
                                Criminal Procedure, 1973.
        -----------------------------------------------------------------------------------------
          Appearance
              Mr. Dilip Kumar Agarwal, Junior Standing Counsel for the
              Petitioner.

              Mr. Zangpo Sherpa, Advocate for the Respondent.
        -----------------------------------------------------------------------------------------
                                   JUDGMENT

Meenakshi Madan Rai, J.

1. The Court of the Learned Chief Judicial Magistrate

(hereinafter, "CJM"), East and North Sikkim, at Gangtok, vide its

impugned Order dated 09-10-2019, in Prosecution Report Case

No.01/2017, discharged the Respondent/Accused, Dasang Bhutia,

(hereinafter, "Respondent") of the offences under Section 135(1)

(a) and (b) of the Customs Act, 1962 (for short, "Customs Act") on

consideration of the facts, provisions of law and the evidence

brought forth, concluding that no case was made out against the

Respondent to warrant his conviction for the offences under the

aforementioned provisions of the Customs Act. Aggrieved thereof,

the Petitioner/Complainant (hereinafter "Petitioner") is before this

Court urging that the Learned Trial Court erred in its conclusion

and erroneously discharged the Respondent.

Union of India vs. Dasang Bhutia

2(i). To appreciate the matter in its correct perspective it is

essential to briefly lay down the facts of the case. The Petitioner

lodged a Complaint before the Court of Learned CJM in Prosecution

Report Case No.01/2017 under Section 135(1) (a) and (b) and

Section 137(1) of the Customs Act, stating that the Petitioner,

(Superintendent of Customs, Sherathang Land Customs Station,

Gangtok under Siliguri Commissionerate), on receipt of information

from the Sikkim Police on 17-11-2015, accompanied by Customs

Officers of Gangtok Customs and two witnesses went to the Sadar

Police Station, Gangtok at about 14.00 hours. At the Police Station

(P.S.) they learned that as per GD Entry No.34, dated 16-11-2015,

the team of Police Personnel posted at Sherathang P.S. with the

assistance of the Indo Tibetan Border Police (ITBP) stationed at

Nathula, acting on a tip off, conducted a body search of traders

and a search of vehicles inbound from Rinchenghang, Tibetan

Autonomous Region (TAR), China to India at Nathula Gate. On a

search of the "Toyota Fortuner", vehicle bearing registration

No.SK-01-PA-6314 and its owner-cum-driver, the Respondent, one

piece of yellow metal believed to be gold, weighing approximately

one kilogram in weight was found concealed in the inner pocket of

the right side of his trousers and duly recovered. The Respondent

failed to furnish any valid documents to establish legitimate

possession of the article which appeared to be smuggled from TAR,

China and was later found to be valued at ₹51,00,000/- (Rupees

fifty one lakhs) only. At about 17.00 hours on 16-11-2015, the

Station House Officer (SHO), Sherathang P.S., Police Inspector (PI)

Novin Rai seized the said gold bar bearing the marking AS30361

"VALCAMBI SUISSE 1 KILO FINE GOLD, 999.9" and the vehicle of

Union of India vs. Dasang Bhutia

the Respondent vide seizure memo dated 16-11-2015, under

Section 102 of the Cr.P.C, in the presence of witnesses Sub

Inspector (SI) Roshan Gurung of the Special Branch and Woman

Constable (WCT) Bindhya Rai, Sikkim Police. The Respondent was

then detained and brought to the Sadar P.S., Gangtok. On the

same day in a related incident a truck driven by one Ms. Nim

Lhamu Sherpa was intercepted and five pieces of gold bar weighing

five kilograms were found concealed under the driver‟s seat. As

both the cases involved illegal import of gold, the SHO, Sherathang

P.S. informed the Customs Officials and made over to them the

Respondent, all the gold bars recovered and the seized Toyota

Fortuner by preparing a "Handing-Taking" Memo dated 17-11-2015

at 14.40 hours, at the Sadar P.S., in the presence of the Sub-

Divisional Magistrate, Gangtok and Police Officers. The gold seized

from the Respondent was tested by two independent licensed

jewelers of Gangtok who concluded that the yellow metal bar was a

24 carat Gold bar. The Respondent on preliminary enquiry

admitted that he had brought the gold from Rinchenghang, TAR,

which was accordingly seized and sealed by the SHO, Sherathang

P.S. As the gold was clandestinely smuggled into India it was thus

liable for confiscation under Section 111 of the Customs Act and

accordingly seized under Section 110(1) of the Customs Act on 17-

11-2015, in the presence of the Respondent, the Sub-Divisional

Magistrate, Gangtok and other Officials. A proper "Panchnama" was

prepared thereafter. Due to paucity of time the statement of the

Respondent could not be recorded but he was arrested under

Section 104 of the Customs Act at 5.00 p.m. on 17-11-2015 and

Union of India vs. Dasang Bhutia

produced before the Court of Learned CJM, from where he was

enlarged on bail on the same date.

(ii) On 18-11-2015, the Respondent got himself admitted

to the Central Referral Hospital, Manipal, Gangtok, Sikkim and on

summons issued under Section 108 of the Customs Act agreed to

give his statement after much persuasion but insisted that his son

scribe his statement. He retracted his earlier statement of 17-11-

2015 to the Customs Authority, where he had admitted that he had

brought the gold from Rinchenghang, TAR, China and instead

categorically denied its ownership. He stated that on his return

from TAR after conducting business the Police Officers of

Sherathang P.S. intercepted his vehicle at Nathula Gate and

checked it from where they allegedly recovered the said gold bar,

of which he was unaware and alleged that it had been planted in

his vehicle and that he was falsely implicated.

(iii) A Show-cause Notice was issued to the Respondent

dated 09-05-2016 and the competent Authority passed the

Adjudication Order on 19-10-2016, ordering confiscation of the

„Toyota Fortuner‟ with the option to the owner to redeem his

vehicle on payment of redemption fine of ₹9,25,000/- (Rupees nine

lakhs twenty five thousand) only. Penalty of ₹5,00,000/- (Rupees

five lakhs) only, was imposed on the Respondent for committing

offences under the provisions of Section 112(a) and b(i) of the

Customs Act.

(iv) According to the Petitioner, Section 123 of the Customs

Act casts a reverse burden on the Respondent to prove that the

gold bar was not smuggled goods. That, in terms of the policies of

the Government of India and Notifications issued from time to time

Union of India vs. Dasang Bhutia

only twenty items are permitted to be imported from the TAR

through Nathula of which the value of a single consignment cannot

exceed Rs.2,00,000/- (Rupees two lakhs) only. That, as Gold is not

in the list of items allowed to be imported through the Sherathang

Land Customs Station it is a prohibited item. As per the Reserve

Bank of India, Circular dated 18-02-2015, only nominated banks

are permitted to import gold on consignment basis. Hence, the

Respondent was in gross violation of the provisions of law. It was

prayed that the Court take cognizance of the offence under Section

137(1) of the Customs Act and Order for Prosecution of the

Respondent under Section 135(1) (a) and (b) of the Customs Act.

3(i). Walking this Court briefly through the facts of the case

as stated supra, Learned Counsel for the Petitioner advancing his

arguments reiterated that the prime witnesses viz. Constable

Ranjeet Patel, ITBP, SI Roshan Gurung, and WCT Bindhya Rai, who

were present at the spot proved recovery of the gold bar from the

Respondent when their statements under Section 108 of the

Customs Act were recorded. It was urged that the Learned Trial

Court however, failed to appreciate that the cross-examination of

the witnesses failed to decimate the evidence of the seizure of the

gold bar. That, there was an error in interpreting the provisions of

Section 102 of the Customs Act which specifically empowers a

"Proper Officer" to search the specific person against whom

information regarding illegal possession of articles is received. It

does not involve a random search of any person, by any Customs

Official who not is empowered to conduct such a search. The

Learned Trial Court also failed to appreciate that the seizure was

conducted by Police Personnel and hence the question of invocation

Union of India vs. Dasang Bhutia

of the provisions of Section 102 of the Customs Act did not arise.

The Learned Trial Court also failed to consider that there was a

prima facie case in terms of the evidence furnished by the

Petitioner to frame charges against the Respondent. The Learned

Trial Court erroneously concluded that Customs Officials were

present at the spot who failed to take steps as envisaged by

Section 102 of the Customs Act. That, the Learned Trial Court

doubted the Prosecution case on grounds that the Petitioner

himself was not present at the spot when the alleged search and

seizure took place. It was further argued that although SI Roshan

Gurung, Petitioner‟s Witness turned hostile but under cross-

examination he admitted that the number inscribed in the gold bar,

M.O.I, matched the details recorded in the Seizure Memo Exhibit 2.

(ii) It was next contended that the Respondent paid the

penalty during the Adjudication Proceedings as ordered and did not

assail the Adjudication Order which is revelatory of his guilt.

Consequently, the Learned Trial Court despite the prima facie case

against the Respondent perversely arrived at a wrong finding and

discharged the Respondent. To buttress his submissions, reliance

was placed on Mohamed Iqbal S/o of Chand Mohamed Qureshi vs.

K. R. Sehgal, Superintendent of Customs and Another1, Basudev

Das vs. Union of India2 and State of Maharashtra vs. Natwarlal

Damodardas Soni3. Hence, the impugned Order be set aside and

the trial be resumed.

4(i). Repudiating the arguments of the Learned Counsel for

the Petitioner, Learned Counsel for the Respondent urged that

Sections 244 and 245 of the Code of Criminal Procedure, 1973

2002 SCC Online Guj 551

2010 SCC Online Gau 674

(1980) 4 SCC 669

Union of India vs. Dasang Bhutia

(hereinafter, the "Cr.P.C") have been discussed at length by the

Learned Trial Court and Section 245 of the Cr.P.C specifically lays

down that charge is to be framed only if the Prosecution case

would succeed if unrebutted. That, the evidence on record

indicates that the seizure of the alleged smuggled article was made

at "Nathula Gate" which is a Customs Area where Customs Officials

are present, in such a circumstance, the provisions of Sections 100

101 and 102 of the Customs Act ought to have been invoked but

this was not done by the Customs Officials present at the spot.

That, the Customs Officials were well aware of the information

pertaining to the smuggling of the article as evident from the

deposition of SI Roshan Gurung. That, in fact, the Petitioner‟s

Witnesses Dr. Y. Siva Prasad, Commandant, 1st IRBN, Delhi, SI

Roshan Gurung, and PI Novin Rai proved that prior information had

been received by the Customs Officials with regard to the alleged

smuggling of the article who failed to take steps in terms of the

statutory provisions. That, besides their failure to act as per the

mandate of law the Property Seizure Memo, Exhibit 2 at Serial

No.8 requires the seizing Authority to give details of the "action

taken/recommended" for keeping of valuable property which were

however not inserted. Exhibit 3, the "Handing and Taking Memo"

reveals that the article was seized and sealed in the presence of

witnesses at the spot under Section 102 Cr.P.C but no such seal is

seen in Exhibit 2 the Seizure Memo. The evidence of CW7, PI Novin

Rai reveals that he had made no entries of the seized article in the

required documents, the seizure witnesses were only Police

Personnel but no other independent witnesses were present at the

time of seizure.

Union of India vs. Dasang Bhutia

(ii) It was next contended that even if the rigours of

Section 102 of the Cr.P.C are not fulfilled, the Learned Trial Court

has carefully considered the provisions of Sections 244 and 245 of

the Cr.P.C and correctly concluded that no materials exist prima

facie to frame charges against the Respondent and hence the

Petition be dismissed.

5(i). Having heard Learned Counsel for the parties at length

and considered all materials furnished before this Court, in the first

instance it may relevantly be noticed that the matter is under

Section 397 of the Cr.P.C viz; Criminal Revision. The said Section is

extracted below for convenient reference;

"397. Calling for records to exercise powers of revision.-(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record."

It is now well settled by a plethora of Judgments of the

Hon‟ble Supreme Court that the Court exercising revisional powers

under Section 397 of the Cr.P.C is to confine the examination of

the records for the purpose of satisfying itself as to the

correctness, legality or propriety of any finding, sentence or order,

recorded or passed by the concerned Magistrate. The Revisional

Court cannot examine the case on merits and substitute its own

decision in place of the findings of the Magistrate. In other words,

all that the Revisional Court is to examine is whether any

Union of India vs. Dasang Bhutia

perversity emerges in the findings of the Learned Trial Court, while

either discharging or framing charge against the accused.

That having been said, the question that falls for

consideration before this Court is whether the Learned Trial Court

correctly discharged the accused of the offences under Section

135(1) (a) and (b) of the Customs Act.

(ii) In Ajoy Kumar Ghose vs. State of Jharkhand and

Another4, the essential difference of procedure in the trial of

Warrant case on the basis of a Police report and that instituted

otherwise than on the Police report, in Sections 238 and 239 of the

Cr.P.C on the one hand and Sections 244 and 245 of the Cr.P.C on

the other, were distinguished. That, on a Police report when the

accused appears or is brought before the Magistrate, the

Magistrate has to satisfy himself that he has been supplied the

necessary documents like the Police report, FIR, statements

recorded under sub-section (3) of Section 161 of the Cr.P.C of all

the witnesses proposed to be examined by the Prosecution, as also

the confessions and statements recorded under Section 164 of the

Cr.P.C and any other documents which have been forwarded by the

Prosecuting Agency to the Court.

That, thereafter comes the stage of discharge as provided in

Section 239 of the Cr.P.C where the Magistrate has to consider the

Police report and the documents sent with it under Section 173 of

the Cr.P.C and if necessary, to examine the accused and hear the

prosecution of the accused. If on such examination and hearing,

the Magistrate considers the charge to be groundless, he would

discharge the accused and record his reasons for doing so. The

(2009) 14 SCC 115

Union of India vs. Dasang Bhutia

prosecution at this stage is not required to lead evidence. Charge is

framed under Section 240 of the Cr.P.C on examination of the

aforementioned documents and on the Magistrate arriving at a

conclusion that a prima facie case exists for proceeding with the

trial.

However, in a Warrant trial instituted otherwise than on a

Police report, when the accused appears, or is brought before the

Magistrate under Section 244(1) of the Cr.P.C, the Magistrate has

to hear the prosecution and take all such evidence as may be

produced in support of the prosecution. In this, the Magistrate may

issue summons to the witnesses under Section 244(2) of the

Cr.P.C on the application by prosecution. All this evidence is

evidence before charge. It is after all this evidence is taken, then

the Magistrate has to consider under Section 245(1) of the Cr.P.C

whether any case against the accused is made out, which, if

unrebutted, would warrant his conviction. If the Magistrate

concludes that there is no such case made out against the accused,

the Magistrate proceeds to discharge him. On the other hand, if he

is satisfied about the prima facie case against the accused the

Magistrate would frame a charge under Section 246(1) of the

Cr.P.C. That, the Complainant then gets a second opportunity to

lead evidence in support of the charge unlike in a Warrant trial on

Police report, where there is only one opportunity.

It has been elucidated in the Ratio supra that in a Warrant

trial instituted otherwise than on a Police report, the Complainant

gets two opportunities to lead evidence, firstly, before the charge is

framed and secondly, after framing of the charge. Under Section

245(2) of the Cr.P.C, a Magistrate can discharge the accused at

Union of India vs. Dasang Bhutia

any previous stage of the case, if he finds the charge to be

groundless. If there is no discernible incriminating material in the

evidence, then the Magistrate proceeds to discharge the accused

under Section 245(1) of the Cr.P.C.

It thus concludes that in a warrant trial instituted on a

Complaint, the Court is to exercise it judicial mind to determine,

whether a case for trial has been made out or not. In such

proceedings, the Court is not to hold a mini trial by marshalling the

evidence.

6(i). In R.S. Nayak vs. A. R. Antulay and Another5, the

Hon‟ble Supreme Court while considering the provisions of Section

245(1) and Section 246 of Cr.P.C propounded inter alia that the

Code contemplates discharge of the accused by the Court of

Sessions under Section 227 in a case triable by it; cases instituted

upon a police report are covered by Section 239 and cases

otherwise than on police report are dealt with in Section 245. The

three sections contain somewhat different provisions in regard to

the discharge of the accused. Under Section 227, the Trial Judge is

required to discharge the accused if he "considers that there is not

sufficient ground for proceeding against the accused". Obligation to

discharge the accused under Section 239 arises when "the

magistrate considers the charge against the accused to be

groundless". The power to discharge is exercisable under Section

245(1) when "the magistrate considers, for reasons to be recorded,

that no case against the accused has been made out which, if

unrebutted, would warrant his conviction". It is a fact that Sections

227 and 239 provide for discharge being ordered before the

(1986) 2 SCC 716

Union of India vs. Dasang Bhutia

recording of evidence and the consideration as to whether charge

has to be framed or not is required to be made on the basis of the

record of the case, including documents and oral hearing of the

accused and the prosecution or the police report, the documents

sent along with it and examination of the accused and after

affording an opportunity to the two parties to be heard. The stage

for discharge under Section 245, on the other hand, is reached

only after the evidence referred to in Section 244 has been taken.

It was however clarified in the Ratio supra that; Notwithstanding

this difference in the position there is no scope for doubt that the

stage at which the Magistrate is required to consider the question

of framing of charge under Section 245(1) is a preliminary one

and the test of "prima facie" case has to be applied. In spite of

the difference in the language of the three sections, the legal

position is that if the Trial Court is satisfied that a prima facie

case is made out, charge has to be framed.

(ii) Bearing the above pronouncement in mind, it is

essential to consider what the Hon‟ble Supreme Court observed in

Mauvin Godinho vs. State of Goa6, as to what a prima facie case is.

It was inter alia held that although the application of this standard

depends on the facts and circumstances in each case, a prima facie

case against the accused is said to be made out when the

probative value of evidence on all the essential elements in the

charge taken as a whole is such that, it is sufficient to induce the

Court to believe in the existence of the facts pertaining to such

essential elements or to consider its existence so probable, that a

prudent man ought to act upon the supposition that those facts

existed or did happen. At this stage there cannot be a roving

(2018) 3 SCC 358

Union of India vs. Dasang Bhutia

enquiry into the pros and cons of the matter and the evidence

weighed as if the trial was being conducted.

7(i). In light of the above position of law while considering

the impugned Order it is seen that the Learned Trial Court has

discussed at great length the provisions of Sections 245 and 246 of

the Cr.P.C and relied on a catena of decisions to fortify its opinion

of discharge of the Respondent but despite considering that at the

stage of Section 244 and Section 245 of the Cr.P.C the evidence

unrebutted would warrant his conviction does not mean "proof

beyond reasonable doubt", the Respondent was discharged. In

Paragraphs 9 and 10 of the impugned Order it is inter alia observed

as follows:-

"9............................Under Section 245 CrPC accused can only be discharged if the evidence of the prosecution would not make out a case warranting the conviction. In other words, a case for conviction must be warranted by the evidence to frame charge. The requirement of evidence making out a case for warranting a conviction essential under Section 245 CrPC has to be read harmoniously with the requirement of opinion presuming the commission of offence by the accused under Section 246 CrPC...................."

"10. ....................It would be wrong to say that the case of the prosecution has to be proved for conviction beyond reasonable doubt before framing of charge. The term warrant a conviction in section 245 CrPC does not encompass the „verdict of conviction‟ of a trial after consideration of the entire evidence tested by cross examination and defence evidence if any but merely requires convincing case short than guilt proved beyond reasonable doubt but more than probability. Section 245 CrPC in my considered view measures prima facie case for conviction on evidence and not conclusive conviction on trial whereas section 246 of CrPC requires opinion of presumption that the accused has committed an offence. When compared with the phraseology for discharge under Section 227 CrPC as „no sufficient ground‟ and under Section 239 CrPC as „groundless‟ section 245 requires more, that is a case has to be made out warranting a conviction, otherwise accused has to be discharged." (emphasis supplied)

Union of India vs. Dasang Bhutia

(ii) In Paragraph 13 of the impugned Order, reliance was

placed on D.N. Anerao vs. Maheshkumar Kantilal Soni and Others7,

wherein the Hon‟ble High Court of Gujarat in Paragraph 3 of its

Judgment observed inter alia as follows;

"3. ..................... If there is some evidence on record which, if accepted, would warrant a conviction of the accused, the accused cannot be discharged. The question whether particular evidence should be accepted or not arises only at the end of the trial and not at the stage of considering whether the accused should be discharged............................." (emphasis supplied)

(iii) In Paragraph 16 of the impugned Order reliance was

placed on Radha vs. Raju8, wherein Hon‟ble Kerala High Court in

Paragraph 13, 14 and 16 of its Judgment inter alia observed that;

"13. ............... In a private complaint alleging commission of a warrant offence under Section 245 Cr.P.C., after the enquiry under Section 244 Cr.P.C., a criminal court is expected under Section 245(1) only to consider whether such a case has been made out "which, if unrebutted, would warrant a conviction." The quality of consideration of the materials available before the court at a later stage of the proceedings - at the stage of deciding whether the accused deserve to be convicted or acquitted - is totally different and more exhaustive. It is at that stage that the exercise of weighing the evidence in golden scales will, can and should be resorted to by a court.

14. It is true that courts have loosely employed the expression "prima facie case" at the stage of Section 203/204 Cr.P.C. and Section 245/246 Cr.P.C. .........

15. ........................................................................................

16. ......... It is not as though the court will have to accept any and every material placed before it at the stage of Section 245/246 Cr.P.C. An application of mind to the materials available before the court must certainly be undertaken. The evidence will not be swallowed without consideration of its probative value. Of course, the exercise of weighing the evidence in golden scales will not also be resorted to." (emphasis supplied)

(1985) 2 GLR 1370

2003(3) KLT 1046

Union of India vs. Dasang Bhutia

(iv) Despite the Learned Trial Court having extracted

Paragraphs of Judgments which caution that at the stage of Section

245 of the Cr.P.C the entire evidence is not to be marshalled like it

is done at the conclusion of trial and that a prima facie case which

could lead to conviction is to be considered, the Learned Trial Court

on examining the evidence before it discharged the Respondent

with reasons commencing from Paragraph 33 of the impugned

Order. According to the Learned Trial Court, the Petitioner was not

acquainted with the facts of the case to his own knowledge but had

filed the Complaint on the basis of the documents concerning the

alleged seizure. That, the evidence of the Prosecution witnesses PI

Novin Rai and WCT Bindhya Rai indicate that the alleged gold bar

was seized from the possession of the Respondent but SI Roshan

Gurung turned hostile and declined to identify the Respondent or

seizure of the smuggled article. That, the Petitioner‟s Witness Dr.

Y. Siva Prasad deposed about the source information, regarding

the alleged gold smuggling. That, PI Novin Rai deposed that once

he received the information that gold was being smuggled through

Nathula Gate, he informed the Customs Officials as well as ITBP

Officials.

(v) Pausing here momentarily, it is evident that the

Petitioner‟s Witnesses by their evidence have at this stage

indicated the possession of the gold bar by the Respondent

allegedly brought from Richenghang, TAR, through Nathula Gate on

the Indian side. He did not have necessary documentary evidence

to indicate legitimate possession of the article. Gold is not in the

list of articles which can be imported and brought from TAR to

Sikkim, in view of the various Notifications of the Ministry of

Union of India vs. Dasang Bhutia

Finance, Department of Revenue, Government of India, relied on

by the Petitioner. The article was tested and found to be gold of 24

carats valued at ₹51,00,000/- (Rupees fifty one lakhs) only at the

time of seizure. In the teeth of such materials which made out a

prima facie case the Learned Trial Court has proceeded to

discharge the Respondent, while evidently erroneously assuming

that Sherathang where the Land Customs Office is located and

Officers of Gazetted Rank are said to be posted and Nathula Gate

where the search and seizure took place are one and the same

place. The Learned Trial Court opined that there is a Land Customs

Station at Sherathang which shows that Gazetted Customs Officers

would be stationed there, that in such a circumstance Section 102

of the Customs Act is mandatory. That, the Customs Officials being

present with full knowledge of search of the suspect for gold in the

Customs Land Station Area could not have abdicated their duty and

circumvented the provisions of Section 102 of the Customs Act by

claiming that they were informed by the Sikkim Police only on 17-

11-2015. It is pertinent to notice that the invocation of Section 102

of the Customs Act is contingent upon the provisions of Sections

100 and 101 of the Customs Act. In such a circumstance, the

provisions of Sections 100 and 101 on the Customs Act are to be

fulfilled, such evidence is to be marshalled at the time of trial and

not at the stage of considering whether a prima facie case has

been made out. The Learned Trial Court also doubted the place of

recovery of M.O.I and observed that the PI failed to keep any

independent witnesses to the seizure. The Learned Trial Court went

on to opine that the Adjudication proceedings may be based on

Section 108 statement of the Act as deposed by CW Bandhana

Union of India vs. Dasang Bhutia

Deori, however, the Sanction for Prosecution in a Court of law

requires deeper probe so that the Sanctioning Authority is

convinced that the Prosecution would stand the rules of evidence

and the provisions of law making this one of the grounds for

discharge of the Respondent.

8. Having carefully perused the evidence on record and

the principles of law laid down by the Hon‟ble Supreme Court in the

Judgments referred to supra, I am of the considered opinion and

reiterate here that, in terms of Section 245 of the Cr.P.C., the

Learned Trial Court is indeed required to examine whether any

case against the accused has been made out which if unrebutted,

would warrant his conviction and in such a circumstance the

Magistrate should discharge him. However, the Learned Trial Court

cannot weigh the evidence furnished at this stage, on golden

scales. The evidence is to be examined for the purposes of a prima

facie case. In the instant matter it prima facie appears that gold

had been smuggled into the country by the Respondent from

Rinchenghang, TAR, seizure of which was made by the SHO,

Sherathang P.S., in the presence of witnesses. That, in terms of

Notification No.38/96-Customs dated 23-07-1996 as amended

subsequently, Gold is not permitted to be imported from China into

India by individuals.

9. In light of the evidence, a prima facie case has been

made out by the Petitioner against the Respondent and the Order

of discharge of the Respondent is thus perverse and not

sustainable. The impugned Order is accordingly set aside.

Union of India vs. Dasang Bhutia

10. The Learned CJM, East Sikkim, at Gangtok, shall

restore the case to its original number in its File and commence

trial by taking necessary steps as per law.

11. The observations made hereinabove by this Court

should in no way prejudice the Learned Trial Court in arriving at its

own independent findings at the completion of trial, as the

observations of this Court supra have no bearing to the merits of

the matter.

12. Crl.Rev.P No.02 of 2020 stands disposed of

accordingly.

13. Copy of this Judgment be forwarded to the Learned

Trial Court for information and compliance.

14. Records of the Learned Trial Court be remitted to it

forthwith.

( Meenakshi Madan Rai ) Judge 03-08-2022

sdl Approved for reporting : Yes